The idle musings of a former military man, former computer geek, medically retired pastor and now full-time writer. Contents guaranteed to offend the politically correct and anal-retentive from time to time. My approach to life is that it should be taken with a large helping of laughter, and sufficient firepower to keep it tamed!

Sunday, June 3, 2012

When self-defense crosses the line

There's been a great deal of discussion about 'castle doctrine' or 'stand your ground' laws in various States since the Trayvon Martin affair. This has often obscured the fact that no such laws are needed in many cases of self-defense where the rights and wrongs of the situation are clear. Usually (except in a few seriously deranged jurisdictions) we are entitled to defend ourselves if there's no other way to deter or deflect an illegal attack that offers serious danger to life and limb, whether or not the attack occurs in a place where 'stand your ground' laws apply.

However, our actions in defense of life and limb may only go far enough to stop the attack. If they go further, the law may now regard us as the aggressor, and find that our actions were not (or were no longer) purely in self-defense. That's why authorities in the field, such as Massad Ayoob, emphasize how carefully we should phrase our comments to police. "I was in fear for my life, so I defended myself" is good. "Yeah, I whacked the cockroach!" is not!

A Philadelphia man found out the hard way last week that our right to self-defense has limits. The Philadelphia Inquirer reports:

A PHILADELPHIA JUDGE said Wednesday he was convinced that a disabled, retired Marine was being attacked in the moments before he fatally stabbed a man last October, but he concluded that the stabbing was still a criminal act rather than self-defense.

Common Pleas Judge Benjamin Lerner then convicted Jonathan Lowe, 57, of voluntary manslaughter and possession of an instrument of crime. The judge found him not guilty of the more-serious charges of first- and third-degree murder.

Lowe, who wears a pacemaker and has survived two strokes and two heart surgeries, could face up to 12 1/2 to 25 years in prison when Lerner sentences him Aug. 16.

The case underscores how uncertain the claim of self-defense can be, even in a state that revised its "Castle Doctrine" last year to give an individual the right to use deadly force in self-defense anywhere in which a person has a legal right to be. The revised law also eliminated the duty to retreat before using that force.

. . .

"There are some unanswered questions in my mind about what happened here," Lerner said. "We will never know exactly how this incident began, and I don’t think we will ever know, 100 percent, when the stabbing began."

. . .

[Assistant D.A. Carolyn] Naylor ... argued that ... Lowe stabbed Manning from behind before both men ended up on the ground.

She noted that two stab wounds were in Manning’s back. She also said Lowe showed intent to kill with malice because after Manning fell mortally wounded, Lowe taunted him and even tried to stab him some more.

I'm afraid the stab wounds to the attacker's back appeared to indicate to the court that they were inflicted after the attack had ceased. His taunts, and his attempts to stab the attacker again even after he'd stopped the attack and fallen to the ground, only made it worse for Mr. Lowe. Frankly, I don't see how the judge could have made a different finding. The only way Mr. Lowe could have gotten himself off this particular (self-inflicted) hook was to encounter a sympathetic, understanding DA who would take the deceased attacker's (extensive) criminal record into account and, after considering the totality of the circumstances, refrain from filing charges. That didn't happen.

Let's all take a lesson from this case. Our rights are clear-cut, and perfectly defensible . . . if we use them legally and appropriately. We step outside those boundaries at our peril.

3 comments:

Erik
said...

I agree, but with a few comments.

If you get attacked and are suddenly forced to defend yourself, adrenaline starts flooding. Unless you are a very experienced fighter, that will make it very hard to "stop" and it will also make it very likely that you will say things that will look bad in a courtroom. Expecially if the threat is gone and you're still full of adrenaline. A fair court system would take that into consideration, and not use a single comment in a situation like that against you.

I think it's very hard to expect a person that had to defend his life to be clear enough to give a valid legal statement, and if that is a requirement to be able to calim selfdefense then I think it's not good enough.

The same thing about the fine line of when an attack has ceased. In Scandinavia that's the line a lot of courts has used to convict people that defended themselves. They force anyone defending themselves to leave the initiative to the attacker.They may ask the defendant why he hit the attacker twice, he should have stopped after the first hit to see if the attacker would stop. (I know one case where the defender was convicted for assault based on striking twice right away)They may also say that since the attacker (a 6'2" bodybuilder) had no weapon, the victim (a 5'6" clerk with no fight training) had no right to use a tool to defend himself.

When I read of US Stand your ground law, it seems to me that they were passed in response to courts making such calls. If self defense is to be considered a legal option, people need to know that they are safe if they use it.

That is not to say that there's a line when it's crossed, as the post describes, but I'm also concerned with the narrowing limits for when self defense is allowed.I think those two points are two sides of the same basic problem.

I'll concur with Erik - I'm an NRA Instructor and also teach intermediate skills in a non-NRA class environment. I am not an attorney and don't play one on TV so I cannot give legal advise to my students (which is one reason the NRA Personal Protection Outside the Home course has one section that must be taught by an attorney or currently-certified LEO, otherwise I cannot give students credit for completion).

The statutes in my state are pretty clear - you are allowed to employ lethal force to defend your life, the lives of your family, and your property, when, as a reasonable and responsible adult in full possession of your faculties you are in fear for your life, safety or grievous bodily harm from a direct and immediate threat.

The wording of the statutes involved is not crystal clear as to when "defense" stops and "aggression" begins, but it is generally interpreted to mean that as long as the direct and immediate threat exists you may continue to employ lethal force, but must cease when the threat ends. Generally assumed is that entry wounds in the attacker's back or side(s) as opposed to their chest is an indication that "defense" no longer exists and "aggression" has begun because entry wounds there indicate the attack has stopped and the attacker is now retreating.

All good and well in the safety and security of a courtroom, but in a dark parking lot at 2AM it's not nearly so clear cut. All states that I'm aware of establish a high standard for employment of lethal force, which is as it should be; that said, Stand Your Ground laws, of which Florida's is among the best (but it should be noted that Florida was not the first state with a Stand Your Ground law), were passed in an attempt to restore some degree of balance to the legal system, protecting the rights of intended victims.

I've seen gun owners who have little experience reflexively empty their gun at a target in a high-stress drill environment; they keep shooting at the target as long as there is ammunition in the gun. LTC Dave Grossman in his books talks about "inoculation against stress" with training, and I agree. The more training one has, and the more stressful - and realistic - that training is, the better one will (or, at least, should) perform in a real life threatening event. That said, getting, and affording, that much training is problematic; it requires not just a basic level of competence operating one's gun, but mastery of the basics and willingness to suffer stress oneself in the pursuit of higher skills. There is a huge difference in how novices deal with a stressful training exercise and how intermediate and advanced shooters with a true and honestly founded high confidence level in their abilities deal with it.

Not everyone can reach that level, nor can all attain the cool detachment necessary to rigidly control their response to conform to statutory requirements which were created among friendly colleagues in an air conditioned environment. For that reason, judges need to exercise, well, judgment when dealing with self defense cases. Unfortunately, on this planet at least, those judges will be just as human as the parties involved in the altercation being judged.

A pipe dream, certainly, but I'd like to see a requirement that before a judge can sit on a self defense case he or she must successfully complete at least a basic self defense course so there's a modicum of understanding as to what the intended victim was experiencing.